Friday, February 20, 2015

On motivating factors

Andrew Coyne offers what's probably the most reasonable argument to treat the negligible threat of terrorism differently from the other risks we so readily accept (and indeed which are regularly exacerbated by deregulation).

But Coyne's argument falls well short of justifying the response actually on offer from the Cons - and indeed looks questionable on its own merits.

(M)otive comes up at many points in the criminal law -
if the motive is self-defence, for example. And motive, in the case of
terrorism, is inseparable from the act. The terrorist does not seek only
to kill for killing's sake, or for reasons internal to him, but to
intimidate others - to send a message - to alter behaviour - not only on
the part of governments, but of citizens. More to the point, he might
just succeed.

It is that possibility that
truly separates terrorism from other crimes of violence. There is no way
to lessen your chances of being killed by a random lunatic. As such,
there is no reason to alter your behaviour. But there is, or at least so
you might reason, so long as you, or we, do as the terrorist demands,
and the more any of us do, the more likely it is that such demands will
be issued. We do not want our society to be run by violence and threats.
Hence the need, at the least, for a separate category of crime.

And
a separate category of response? Here the scale of the threat enters
into it. An organized movement, with a coherent ideology, capable of
raising funds, recruiting others, planning, training and so on, is
capable of much greater mayhem than a stray lunatic - especially now
that the technology of mass death has escaped the control of state
actors. Never has it been more easily available, and never have there
been so many willing to use it. (The crossover case is the so-called
"lone wolf," acting alone but guided or inspired by an organized
terrorist group. It is not the voices in his head we need to worry about
so much as the voices in his ear.)

Now, let's start by highlighting Coyne's distinction between a "random lunatic" whose actions are in no way related to terrorism-related policy, and a "lone wolf" who draws some inspiration from terrorist groups.

At best, that distinction looks like an exercise in begging the question. At least, I don't think there's much room for doubt that people who engage in random violence would generally do so based on the influence of a combination of internal and external "voices" - and to assert that some people may include organized groups among the latter is utterly unhelpful for any purpose.

In fact, if our goal is to establish policy with the goal of minimizing the external voices which might lead people to violence, Coyne has it exactly wrong.

The motive of a speaker or group whose message might drive an individual to violence should be utterly irrelevant. A message which has an equally strong likelihood of influencing an individual to pose a threat is no less and no more threatening whether it originates with a group dedicated to the same end, or another source with entirely innocent intentions.

That doesn't answer the question as to how to address the relationship between mental health issues and security threats. And there would be alarming implications to any policy that speech which could possibly provoke violence (even if only through misinterpretation) should be suppressed - which is in large part why the virtually unlimited powers contained in C-51 are so worrisome.

The more reasonable means of addressing individuals who might be prone to acts of violence is thus intervention at the individual level to ensure that some pro-social voices and connections are in the mix. That's exactly the part of the system which broke down in the case of last year's Ottawa shootings - and it's the aspect of threat management which the Cons are downplaying in order to push widespread surveillance and interference.

But there's no reason to think we're safer if public policy is oriented toward stopping the speech of groups who might shift a would-be attacker from "random lunatic" to "lone wolf" status.

More plausibly, one might give some weight to Coyne's point about the potential for the organized use of technology capable of causing significant harm. Here too, though, we run into the Cons' highly selective choices in seeking to make that very technology far more widely and easily available than their political opponents.

Moreover, the same phenomenon which Coyne considers worrisome solely in the context of intended intimidation applies equally to the distribution of threats with entirely different motivations. Weapons in the hands of groups aren't the only dangerous materials which have the potential to cause widespread harm to innocent individuals, and one doesn't have to be motivated by a desire to hurt people to actually cause significant damage - as is obvious from the examples of contaminated goods and transportation accidents which have caused far more real harm to Canadians in recent years.

And Coyne is one of the most fervent advocates in Canada for the position that those types of dangers should be subject to minimal supervision in the business sector, permitting the market sort out any problems with little government involvement. Or at the very least, I'd be shocked to see him advocate an equivalent system to C-51 - featuring no-notice access allowing secret government agencies to access and change the operations of businesses, or immediately stop corporate operations on bare "security" grounds without notice or an opportunity for explanation - to guard against the deadly consequences of regulatory failure.

Finally, we get to motive as a factor in sentencing - which is an entirely valid consideration in the criminal law context. But there, motive surfaces as a relevant factor only after a crime has been demonstrated - meaning that one can't use it as a reasonable analogy for intruding on the daily lives of Canadians in the absence of evidence.

In sum, then, Coyne's case for treating the motive behind terrorism as reason to intrude on individual freedoms ultimately serves only to provide a couple more twists on the same fatally-flawed argument. But as I wrote in yesterday's column, if our goal is to ensure public safety, any focus on motivations rather than actual threats is at best an unhelpful diversion - and at worst an opportunity for gross abuses of power.